Volume 20, Edition 1

New Administration. That says it all. Changes are coming and the impact on trucking will be big. We have a new leader at the DOT, Elaine Chao. There are wish lists flying all over as everyone looks to see what items on their agenda can be finagled. Buckle your seat belt and we will see where this goes.

FEDERAL REGULATIONS – President Trump has declared a moratorium on regulations. All new regulations are postponed and the moratorium delayes the effectiveness of rules that have been published but with future effective dates. The entry level driving training rule may be delayed. There has been some opposition to the regulation as a request for reconsideration has been filed.

PASSENGER CARRIERS – The FMCSA has released a web page styled “Understanding Passenger Carrier Regulations,” Organizations and businesses that transport passengers will now receive clarification on existing Federal Motor Carrier Safety Regulations (FMCSRs), as well as requirements that have been changed over the years through legislation, rulemaking, and litigation. It will provide USDOT operating authority registration requirements, minimum levels of financial responsibility, and applicability of safety and commercial regulations.

2017 POCKET GUIDE TO TRANSPORTATION – For you statistics junkies the DOT has released the 2017 Pocket Guide to Transportation. The guide indicates that in a 10 year period, until 2014, there were 11 million trucks on the road. In 2015, trucks carried more than $13 trillion of freight, nearly $1 trillion more than in 2012. Trucks are expected to carry more than $24 trillion of freight in 2045, approximately twice as much as 2012.

URS DELAYED – In case you missed our news blast, FMCSA is extending the implementation date of the final stage of the Unified Registration System (URS) beyond January 14, 2017 because additional time is needed to securely migrate data from multiple legacy platforms into a new central database and to conduct further compatibility testing with its State partners.

TRUCK FATALITIES – The NHTSA has reported that driver fatalities rose 8% this year. There was an estimated 27,875 people killed. The fatality rate increased 1.15 fatalities per 100 million vehicles miles traveled.

ELD – The 7th Circuit has denied a motion for rehearing on the challenge to the ELD rule mandating electronic logging devices (ELDs) for drivers required to maintain records of duty status (RODS). Unless the Supreme Court or Congress act to overturn or delay the rule or FMCSA reverses or postpones the rules the ELD will go into place on by December 18, 2017.

CRASH ACCOUNTABILITY – The DOT has released a study that confirms that driver experience is critical to reducing crashes. The analysis which can be viewed here shows a link between years of experience behind the wheel and the reduced likelihood of the driver named as the “critical reason” for the crash. Less than 10 percent of the crashes studied listed the driver as the critical reason for the crash. If a driver had more than 10 years of experience the risk of being assigned as the critical reason for the crash was14 percent lower. You can see the position statement here.

SAFETY FITNESS DETERMINATION – The FMCSA issued a notice of proposed rulemaking which seeks to amend the Federal Motor Carrier Safety Regulations (FMCSRs) to revise the current methodology for issuance of a safety fitness determination (SFD) for motor carriers. The proposed new methodologies would determine when a motor carrier is not fit to operate commercial motor vehicles (CMVs) in or affecting interstate commerce based on the carrier’s on-road safety data in relation to five of the Agency’s seven Behavior Analysis and Safety Improvement Categories (BASICs); an investigation; or a combination of on-road safety data and investigation information.

DOT STRATEGIC PLAN – The DOT released its 5 year research, development and strategic plan. U.S. DOT has defined four critical transportation topic areas that will be supported by U.S. DOT RD&T over the next five years: Promoting safety, improving mobility, improving infrastructure and preserving the environment. The Strategic Plan also describes four overarching research themes, policy research, emerging technology, strengthening research coordination, and big data.

TRAFFIC CONGESTION – The DOT has reported that the struggling infrastructure contributes to traffic congestion that often delays trucks along freight corridors. This pressure on freight corridors is expected to worsen in the coming years as truck traffic is projected to increase along large metropolitan areas, according to DOT’s biennial report, “2015 Status of the Nation’s Highways, Bridges, and Transit: Conditions & Performance.” Truck traffic accounted for 67% of freight tonnage and 64.1% of freight value in 2012. Trucks usually are the primary method for freight trips consisting of less than 500 miles, An American Transportation Research Institute study last year revealed congestion cost the trucking industry nearly $50 billion in 2014.

The Eastern District of Louisiana held that the MCS-90 did not allow for a direct action in the absence of a judgment against the motor carrier. The insurer, who had already received a ruling that the policy did not provide coverage, was granted summary judgment. The Court also held that the lessor of a vehicle was not liable for negligent entrustment of a vehicle when there was no evidence to support such a claim. (Cherkaoui v. Pinet, 2017 WL 1111276)

A jury’s finding of direct negligence on the part of a trucking company was upheld when the evidence showed that the company failed to use ordinary care in instructing the driver and making sure that he could operate the vehicle. The Court also upheld the lower court ruling excluding evidence of the plaintiff’s mental health and drug use at the time of the accident. (JBS Carriers, Inc. v. Washington, 2017 Tex. App. LEXIS 148)

The Court of Appeals in Ohio upheld a trial verdict, denying a JNOV and a request for a new trial. The court held that a truck driver had sufficiently established loss of income following an accident in which he was thrown from the back of his truck to the front when the vehicle was struck during unloading. (Austin v. Chukwuani, 2017 WL 123336)

The Court of Appeals in Texas withdrew an earlier decision and vacated its prior judgment in a case addressing the appeal of a trial court judgment. The Court upheld the trial court decision, concluding that there was evidence of gross negligence on the part of the driver and the motor carrier in entrusting the vehicle, and evidence of “pattern logging” of hours by the driver, both of which supported the judgment. (Greenwood Motor Lines v. Bush, 2017 WL 7488859)

A motion to remand failed in the Eastern District of Louisiana. The trucking company removed the case after it received discovery which lent support for the assumption that damages would exceed the $75,000 jurisdictional limit. It was only after receipt of that information was it clear and certain enough to justify removal. (Wright v. National Interstate Insurance Co., 2017 U.S. Dist. LEXIS 9529)

CARGO

A broker was entitled to partial judgment on the pleadings when a plaintiff asserted a claim against the broker under the Carmack Amendment. The Southern District in Ohio held that brokers were not liable under the Carmack Amendment and declined to exercise jurisdiction over state law claims asserted against the broker. (Mitsui Sumitomo Insurance USA v. Maxum Trans., Inc. , 2017WL 7496737)

A motion to dismiss filed by a carrier failed in the Eastern District of Pennsylvania. The motor carrier argued that it was entitled to the benefit of an air waybill when it failed to maintain proper temperature for a shipment of HGH. The Court held that there were questions of fact as to whether the air way bill or a separate ground transport bill of lading governed the move. (Baloise Insurance Ltd. V. Philadelphia Truck Lines, Inc., 2017 WL 118100)

The District Court in Illinois denied a motor carrier’s motion to dismiss any cause of action other than a claim under the Carmack Amendment. While the Court concluded that state law causes of action were preempted, it held that plaintiff could proceed with a cause of action for violation of federal safety regulations and a cause of action that the motor carrier’s failure to stop the driver from operating a vehicle with severe violations. (Starr Indemnity & Liability Company v . YRC., 2017 US Dist LEXIS 6260)

A default judgment for all requested damages was entered in favor of the plaintiff in the Central District of California. The Court considered all relevant factors and concluded that damages were proved and there was no basis to not grant judgment for a loss to cargo damaged in transit (Craneveyor v. AMK Express, Inc., 2017 WL 89553)

In the 3rd Circuit the Court vacated a default judgment entered against a motor carrier who contended that the cargo at issue was delivered hot and that the refrigeration unit did not fail. The Court held having the matter litigated on its merits when there was a defense warranted the judgment being vacated. (Mrs. Ressler’s Food Products v. KZY Logistics, 2017 WL 167464)